Case No: C5/2008/0149
Neutral Citation Number: [2008] EWCA Civ 563
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL 
[AIT No. AA/14101/2006]

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 1st May 2008

Before:

LORD JUSTICE LONGMORE
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Between:

	FA (SOMALIA)
	Appellant	
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THE SECRETARY OF STATE FOR THE HOME DEPARTMENT	
Respondent	

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Ms C Bayall (instructed by Messrs Polpitiya & Co) appeared on behalf of the Appellant.

THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED

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Judgment
Lord Justice Longmore:

1.	This is an application made on behalf of someone whom I will call “FA” from Somalia.  He has the misfortune to belong to a minority clan called Yibir, who are disregarded by ordinary Somalis, it appears from the findings, because they are believed to be ethnically Jewish and not pure Somali.  They have menial occupations, such as that of a blacksmith, a barber or a sweeper, and they are tolerated to organise bridal gifts which go by the local name of “Samayo”.  The claim is that he has a well-founded fear of persecution.  He was believed in his account, so he had a finding of credibility in his favour.  He said he was subjected to three attacks.  First of all in 1991 before the United Nations Forces arrived, and next in 1998 after United Nations Forces had withdrawn, and on that occasion it was said that his uncle was attacked, the daughter of his uncle was killed and one daughter was abducted.  Then in 2002 there was a third attack when a local militia detained him in a camp for seven months when he escaped, and thereafter spent a number of years in Kenya where he was detained in 2005, but he managed to escape after bribing one of the guards.  He arrived in the United Kingdom in June 2006 and claimed asylum.  That was refused.  He appealed to Immigration Judge Cockrill who, as I say, found in his favour as a matter of credibility, and the Secretary of State then applied for reconsideration on the basis that Immigration Judge Cockrill had failed to refer to the critical country guidance case of YS & HA Somalia CG [2005] UKIAT 00088, which dealt specifically with the problems facing someone from the minority clan of Yibir.

2.	Immigration Judge Freestone, after Senior Immigration Judge Goldstein had considered the matter, held that there was a material error of law because, according to paragraph 55 of YS & HA, specific findings had to be made about the availability of clan protection.  So the matter went before a new immigration judge -- Mr Jones QC -- before whom Mr Norton Taylor submitted that there was sufficient material in Immigration Judge Cockerill’s original decision to indicate that the applicant did not have majority clan protection in the way set out as being a requirement for YS & HA.  Immigration Judge Jones came to the conclusion that there was no evidence that majority clan protection was not available and therefore that, on the balance of probabilities, there was for this applicant.  The flavour of his decision can been seen in paragraphs 25 and 26, as is made clear in paragraph 58 of the determination in Re: YS & HA, to the effect that majority clan patronage and protection is traditional for the Yibir:-  

“There is no evidence available to me to persuade me that there is a reasonable degree of likelihood that this appellant is an exception to that traditional or usual situation.  Indeed, he has not given such evidence himself.  Thus, although it has been accepted and filed that the appellant, over the very many years that he lived in the Mogadishu area, was subjected to some attacks, those attacks, when seen in the context of the past, an ongoing strike of the Somali are insufficient to lead me to conclude that this appellant has not enjoyed majority clan patronage and protection and could not enjoy majority clan patronage and protection if returned to Mogadishu.”

3.	There were originally three grounds of appeal.  Firstly, that the decision that the applicant had enjoyed majority clan protection was perverse.  Secondly, that the detention for seven months on the last occasion amounted to degrading treatment for the purposes of article 3, and thirdly, that the immigration judge failed to have regard to various paragraphs of the country information report.  All those grounds were rejected by Dyson LJ on paper.  It is now said by Miss Bayati for the first time that, although the first immigration judge -- Immigration Judge Cockrill -- was wrong not to have referred to YS & HA, that was an immaterial error because, on any view, the evidence before Immigration Judge Cockrill showed that no clan protection was available.  If that was truly a new point I would be refusing leave to amend the grounds of appeal because it is far too late for the first time to take new points in this court.  But I do not think that really is a new point, because Immigration Judge Jones did reject a very similar submission, namely that there was enough in the original decision for the applicant’s case to succeed; but in my judgment that was an argument that rightly failed because one has to look over the whole relevant period in order to assess whether there was clan protection or not.  

4.	As Immigration Judge Jones pointed out, the fact that it might have failed on one occasion does not mean to say that it is not generally available.  So Miss Bayati has reformulated her grounds orally by saying, firstly, that there was no material error of law in Immigration Judge Cockrill’s decision (but in my judgment there was); secondly, that the judge did not apply the facts properly to the case, especially the six month detention on the last occasion, which must mean that he had lost majority clan protection at that stage.  But that was an argument that was considered by Immigration Judge Jones and in the passage that I have quoted he rejected that.  I cannot follow Miss Bayati’s submission that he had not any proper regard for that last period, since he mentions it in paragraph 24 and paragraph 25 is premised directly, in my judgment, on the whole of the period that he has mentioned in previous parts of the decision; thirdly Ms Bayati submits that he failed to have regard to yet another case, where it is said there was a similar situation of six or seven months’ detention before escape and that, in that case, on those facts, it was held that majority clan protection had been lost.

5.	Well, of course, different tribunals may come to different conclusions on what may be different facts.  The idea that this court could tolerate that this case, having been reconsidered once on the basis of a material decision not having been considered should do so again is on the basis of a decision with different facts, in my judgment, misplaced.  This is, as so often, no more than an attempt to dress up as a question of law what is truly a question of fact and the application will be refused.

Order:  Application refused